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Philosophical Foundations of the Nature of Law$
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Wil Waluchow and Stefan Sciaraffa

Print publication date: 2013

Print ISBN-13: 9780199675517

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199675517.001.0001

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Law’s Authority is not a Claim to Preemption *

Law’s Authority is not a Claim to Preemption *

Chapter:
(p.51) 3 Law’s Authority is not a Claim to Preemption*
Source:
Philosophical Foundations of the Nature of Law
Author(s):

Kenneth M. Ehrenberg

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199675517.003.0004

Joseph Raz argues that the law claims legal directives constitute reasons to exclude personal reasons for contrary action. This chapter raises some considerations against his argument while admitting that we may treat directives as exclusionary: Raz's reasoning neglects a failure of closure; novel choice-of-evils defences to criminal accusations show that we are invited to act on our own reasons even when in conflict with the law; and anyone who believes that there are gaps in the law (as Raz does) must also allow that it cannot demand exclusion of our personal reasons. If the function of authority is to get individuals to comply better with reason than they would do if left on their own, it does not make sense for it to claim to preempt our contrary reasons and at the same time leave open spaces or catch-all exceptions which we must use our own devices to fill.

Keywords:   Joseph Raz, legal authority, service conception, justification defenses, legal indeterminacy, exclusionary reasons

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